Krishna Art Silk Cloth Pvt.Ltd., Surat V. The Dy.CIT.,Circle-1, Surat

ITA 1776/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94690 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-11-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 09-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: RASESH SHAH
• Keywords: Reopening of assessment; Tangible material; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE SHRI RAJPAL YADAV , JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA NO. 1776 & 2058/AHD/2012 ASSESSMENT YEAR :2005-06 M/S. KRISHNA ART SILK CLOTH PVT. LTD., 261/A GIDC, PANDESARA, SURAT - 394221 THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-1, ROOM NO. 108, AAYAKAR BHAVAN, MAJURAGATE, SURAT V/S . & DY. COMMISSIONER OF INCOME TAX, CIRCLE-1, SURAT M/S. KRISHNA ART SILK CLOTH PVT. LTD., 261/A GIDC, PANDESARA, SURAT - 394221 PAN NO. AA BCK1458N (APPELLANT) .. (RESPONDENT) ! /BY ASSESSEE SHRI RASESH SHAH, A.R. ! / BY REVENUE SHRI DINESH SINGH, SR. D.R. # ! /DATE OF HEARING 04.11.2015 $%&' ! /DATE OF PRONOUNCEMENT 17.11.2015 O R D E R PER : SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER THESE TWO APPEALS OF WHICH ONE IS FILED BY ASSESSEE AND THE OTHER BY REVENUE ARE AGAINST THE ORDER OF CIT(A)-I, SURAT, D ATED 26.06.2012 FOR THE ASSESSMENT YEAR 2005-06. ITA NOS. 1776 & 2058/AHD/2012 A.Y. 05-06 (M/S.KRISH NA ART SILK CLOTH PVT.LTD.) PAGE 2 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER: 3. THE ASSESSEE IS A COMPANY STATED TO BE ENGAGED I N THE BUSINESS OF DYEING AND PRINTING OF FABRICS ON JOB WORK BASIS. THE ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 05-06 ON 26.10.2005 DECLARING TO TAL INCOME AT RS.21,29,920/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED U/S.143(3) VIDE ORDER DATED 3 1.12.2007 AND THE TOTAL INCOME WAS DETERMINED AT RS.23,59,460/-. SUBSEQUEN TLY, ON PERUSAL OF BREAKUP OF LOANS AND ADVANCES AND THE TAX AUDIT REP ORT, IT WAS NOTICED BY THE ASSESSING OFFICER THAT ASSESSEE HAD UNUTILIZED CENV AT CREDIT OF RS.22,85,716/- AS ON 31.03.2005 WHICH WAS NOT CONSI DERED AND INCLUDED IN THE CLOSING STOCK WHICH AS PER THE VIEW OF ASSESSIN G OFFICER, SHOULD HAVE BEEN INCLUDED, WHILE VALUING STOCK AND AS REQUIRED U/S.145A OF THE ACT. ACCORDINGLY, NOTICE U/S.148 OF THE ACT WAS ISSUED O N 29.03.2011 AND THE CASE WAS REOPENED. IN RESPONSE TO THE NOTICE U/S.148 OF THE ACT; ASSESSEE INTER ALIA VIDE ITS SUBMISSION DATED 25.04.2011 STATED TH AT THE RETURN OF INCOME SUBMITTED ON 26.10.2005 BE CONSIDERED AS RETURN FUR NISHED IN RESPONSE TO THE NOTICE U/S.148OF THE ACT. THEREAFTER, THE ASSESSME NT WAS FRAMED U/S.143(3) R.W.S. 147 OF THE ACT VIDE ORDER DATED 05.12.2011 A ND THE TOTAL INCOME WAS DETERMINED AT RS.39,86,233/-. 4. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASS ESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A) WHO VIDE ORDER DATED 26 .06.2012 GRANTED PARTIAL RELIEF TO THE ASSESSEE. ITA NOS. 1776 & 2058/AHD/2012 A.Y. 05-06 (M/S.KRISH NA ART SILK CLOTH PVT.LTD.) PAGE 3 5. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE AN D ASSESSEE BOTH ARE IN APPEAL BEFORE US. THE GROUNDS RAISED BY THE REVENU E READS AS UNDER: [1] ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN RESTRICTING THE ADDITION OF RS. 22,85,716/- MADE ON ACCOUNT OF UNUTILIZED CENVAT CREDIT TO RS.1,98,510/ - EVEN THOUGH THE ASSESSEE FAILED TO APPLY THE PROVISIONS OF SECTION 145A. [2] ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) DID NOT APPRECIATE THE FACT THAT THE ASSESSE E REVERSED ITS CLAIM THAT THE AMOUNT IS NOT THE UNUTILIZED CENVAT CREDIT S BUT ARE THE REVERSE ENTRY OF CENVAT AS IS DONE UNDER THE AVAILA BLE OPTIONS AS PER THE NOTIFICATION NO.30. [3] ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER. 5.1 ON THE OTHER HAND, THE GROUNDS RAISED BY THE AS SESSEE READ AS UNDER: 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN REOPENING ASSESSMENT U/S 148 O F THE ACT AND THEREBY ERRED IN FRAMING ASSESSMENT U/S.143(3) R.W. S. 147 OF THE I.T.ACT, 1961. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE BY ASSESSING OFFICER TO THE EXTENT OF RS.1,98,510/- AS AGAINST THE ADDITION OF RS.22,85,716/- U/S 145A OF THE I.T. ACT , 1961. 3. IT IS THEREFORE PRAYED THAT THE ASSESSMENT BE QU ASHED OR ABOVE ADDITION MADE BY THE ASSESSING OFFICER MAY PLEASE B E DELETED. 6. SINCE, THE GROUNDS RAISED BY THE ASSESSEE AND RE VENUE ARE INTERCONNECTED, SO, BOTH THE APPEALS ARE CONSIDERED TOGETHER. 7. ASSESSING OFFICER ON PERUSING THE BREAKUP OF LOA NS AND ADVANCES OF BALANCE SHEET AND THE TAX AUDIT REPORT NOTICED THAT ASSESSEE HAD UNUTILIZED CENVAT CREDIT OF RS.22,85,716/- AT THE END OF PREVI OUS YEAR ENDING ON 31.03.2005, WHICH WAS NOT CONSIDERED WHILE VALUING THE CLOSING STOCK. THE ASSESSING OFFICER WAS OF THE VIEW THAT AS PER THE P ROVISIONS OF SECTION 145A, ASSESSEE SHOULD HAVE INCLUDED THE UNUTILIZED CENVAT CREDIT AS PART OF ITA NOS. 1776 & 2058/AHD/2012 A.Y. 05-06 (M/S.KRISH NA ART SILK CLOTH PVT.LTD.) PAGE 4 CLOSING STOCK. HE ACCORDINGLY MADE ADDITION OF RS. 22,85,716/-. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, THE MATTER WAS CARR IED BEFORE THE CIT(A) WHERE ASSESSEE CHALLENGED THE REOPENING OF ASSESSMENT AS WELL AS THE ADDITION ON MERITS. CIT(A) AS FAR AS THE MERITS OF REOPENING I S CONCERNED, UPHELD THE ORDER OF ASSESSING OFFICER AND HELD THE REOPENING T O BE VALID BY HOLDING AS UNDER: 8. THE PRIMARY REQUIREMENT IN-THE PROVISO TO SECTI ON 147 IS THAT FULL MATERIAL FACTS SHOULD HAVE BEEN DISCLOSED BEFORE THE ASSESSI NG OFFICER. AS DISCUSSED IN THE SUBSEQUENT PART OF THIS ORDER IN RESPECT OF GROUND NO. 2, THE APPELLANT DID NOT FURNISH THE BREAKUP OF CENVAT OB INTO THAT PERTAINING TO COLOUR/ CHEMICALS AND GREY EVEN AT THE APPELLATE STAGE. MOR EOVER, WHAT COMPONENT OF CENVAT REVERSAL PERTAINED TO GREY AND WHAT COMPO NENT WAS PERTAINING TO COLOUR / CHEMICALS WAS ALSO NOT MENTIONED/VERIFIABL E. THEREFORE, THIS GROUND OF APPEAL IS DISMISSED. 7.1 AS FAR AS THE MERITS OF ADDITION IS CONCERNED, HE GRANTED PARTIAL RELIEF TO THE ASSESSEE BY HOLDING AS UNDER: 10.1 THE APPELLANT HAS REVERSED CENVAT OF RS 22,85, 716/- AS UNUTILIZED CENVAT CREDIT. THIS INCLUDES CENVAT CREDIT ON GREY OF RS. 20,87,206/- AND CENVAT CREDIT ON COLOUR AND CHEMICALS. HOWEVER, THI S BREAK UP IS AS PER THE SUBMISSION OF APPELLANT AND IT IS NOT SUBJECT TO VE RIFICATION. 10.2 THE OPENING CENVAT BALANCE AS PER APPELLANT IS RS.52,85,315/-HOWEVER, NO BREAK - UP OF THE SAME IS AVAILABLE INTO BALANCE PERTAINING TO GREY CLOTH AND BALANCE PERTAINING TO COLOUR AND CHEMICALS. CEN VAT SUMMARY FILED BY THE APPELLANT IS ASUNDER :- CREDIT GREY 6314788 CREDIT CAP GOODS 131948 CREDIT COLOUR AND CHEMICALS 1157137 LES CANVAT UTILIZED 8769304 LESS CENVAT REVERSED 2285716 CANVAT BALANCE 74334 HOWEVER, IF WE COMPUTE AS ABOVE, THE BALANCE COMES TO 1834168 AND NOT 74,334/- THEREFORE, THE ACCURACY AND CORRECTNESS OF APPELLANTS SUBMISSION IS NOT VERIFIABLE. ITA NOS. 1776 & 2058/AHD/2012 A.Y. 05-06 (M/S.KRISH NA ART SILK CLOTH PVT.LTD.) PAGE 5 10.3 THIS INACCURACY HAS CREPT IN, IN VIEW OF MANNE R IN WHICH THE EXCISE/CENVAT ACCOUNT IS MAINTAINED BY THE APPELLAN T. THE APPELLANT CLAIMS THAT IT IS DOING JOB WORK AND EXCISE DUTY PAID IS R ECOVERED FROM THE PARTY CONCERNED WHOSE JOB WORK IS DONE. APPELLANT ALSO SU BMITTED THAT LIST OF CREDITORS AS ON 31.3.2004 INCLUDES AN AMOUNT OF RS. 44,42,914/- AS GREY PARTY MADVAT RECEIVABLE' . FROM A PERUSAL OF FORM E R-1 FILED BEFORE THE EXCISE AUTHORITIES , IT IS NOTICED THAT APPELLANT H AS MENTIONED CENVAT REVERSAL OF COLOUR AND CHEMICALS OF RS 1,98,510/- THE REMAIN ING CENVAT REVERSED IS OF RS. 20,87,206/- THE APPELLANT WAS ASKED DURING THE COURSE OF APPELLATE PROCEEDING ABOUT THE BREAK- UP OF OPENING CENVAT IN TO CENVAT PERTAINING TO COLOURS / CHEMICALS AND CENVAT PERTAINING TO GREY. HOWEVER, THE APPELLANT COULD NOT FURNISH THE REQUIRED DETAILS. 10.4 IT IS TRUE THAT APPELLANT IS DOING WORK ON J OB WORK BASIS. THEREFORE, PURCHASES SHOWN FOR EXCISE PURPOSE FROM PERSONS WHO SE1 JOB WORK IS .DONE DO NOT ENTER THE APPELLANTS P &L A/C OR TRADING A/ C. SIMILARLY, THE SALES SHOWN FOR EXCISE PURPOSE ALSO DO NOT ENTER THE P&L A/C OR TRADING A/C. THE CORRESPONDING CENVAT ENTRIES ARE ALSO OUTSIDE P&L A /C OR TRADING A/C. HOWEVER, COST OF COLOUR CHEMICALS DOES ENTER THE P& L A/C/ TRADING A/C. THE APPELLANT NEVER INCLUDED CLOSING STOCK OF CENVAT PE RTAINING TO COLOURS AND CHEMICALS AS PER THE REQUIREMENTS OF SECTION 145A. 10.5 THE REVERSAL OF COLOUR AND CHEMICALS CENVAT CA N BE ALLOWED ONLY TO THE EXTENT IN PERTAINING TO CURRENT YEAR. THE REVERSAL OF CENVAT IN OPENING BALANCE (COMPONENT PERTAINING TO COLOURS & CHEMICAL S) AMOUNTS TO INCREASING THE COST OF COLOUR / CHEMICALS INCURRED IN EARLIER YEARS. IN ORDER TO DO SO, APPELLANT SHOULD HAVE INCLUDED THE EXCISE COMPONENT IN THE CLOSING STOCK OF COLOUR AND CHEMICALS LAST YEAR AS PER SECTION 145A. SINCE, THE ONLY DEBIT IS PROFIT & LOSS ACCOUNT IS TO THE EXTENT OF RS 1,98, 510/-, THEREFORE, THE ADDITION IS SUSTAINED TO THAT EXTENT. 10.6 HOWEVER, IT CANNOT BE ASCERTAINED WHETHER THE REMAINING CENVAT REVERSED OF RS.20,87,206/- PERTAINS TO GREY ALONE O R NOT. IT MAY INCLUDE COMPONENT OF CENVAT ON CAPITAL GOODS AND CENVAT ON GREY. HOWEVER, THESE COMPONENTS WILL NOT AFFECT THE PROFIT OF THE APPELL ANT COMPANY AS THIS REVERSAL 'HAS NOT BEEN ROUTED THROUGH THE P & L ACCOUNT. THE REFORE, ADDITION TO THAT EXTENT IS DELETED. 7.2 AGGRIEVED BY THE ORDER OF CIT(A), BOTH PARTIES ARE NOW IN APPEAL BEFORE US. 7.3 BEFORE US, THE LD. A.R. SUBMITTED THAT THE REOP ENING IN THE PRESENT CASE IS AFTER FOUR YEARS AND THEREFORE, IN THE ABSENCE O F ANY ALLEGATION ON THE PART OF THE ASSESSEE TO MAKE FULL AND TRUE DISCLOSURE TH E ASSESSING OFFICER CANNOT RESORT TO THE REOPENING OF THE ASSESSMENT. HE FURT HER SUBMITTED THAT NO NEW ITA NOS. 1776 & 2058/AHD/2012 A.Y. 05-06 (M/S.KRISH NA ART SILK CLOTH PVT.LTD.) PAGE 6 MATERIAL HAD COME IN THE POSSESSION OF THE ASSESSIN G OFFICER WHICH LEADS HIM TO BELIEVE ABOUT THE ESCAPEMENT OF INCOME AND THE M ATERIAL, WHICH HAS BEEN CONSIDERED BY THE ASSESSING OFFICER, WAS ALREADY BE FORE THE ASSESSING OFFICER. HE, THEREFORE, SUBMITTED THAT IN THE PRES ENT CASE, THE REOPENING HAS BEEN ON ACCOUNT OF CHANGE OF OPINION WHICH IS NOT P ERMISSIBLE AS PER LAW. HE FURTHER PLACED RELIANCE ON VARIOUS DECISIONS AND AL SO THE DECISION OF THE CO- ORDINATE BENCH OF THE TRIBUNAL OF KIRAN INDUSTRIES. THE LD. D.R., ON THE OTHER HAND, SUPPORTED THE ORDER OF ASSESSING OFFICER. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, THE ASSESSEE HAS CHA LLENGED THE REOPENING OF THE ASSESSMENT FOR A.Y. 2005-06 AND INITIATION OF T HE REASSESSMENT PROCEEDINGS FOR A.Y. 2005-06 IN EXERCISE OF THE POW ERS U/S.147 R.W.S. 148 OF THE ACT. IN THE PRESENT CASE, IT IS AN UNDISPUTED FACT THAT THE ORIGINAL ASSESSMENT FOR A.Y. 2005-06 WAS FRAMED U/S.143(3) V IDE ORDER DATED 31.12.2007 AND THEREAFTER, NOTICE U/S.148 WAS ISSUE D ON 29.03.2011. THUS, THE NOTICE FOR REOPENING OF ASSESSMENT IS BEYOND TH E PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. TO CONFER THE JURISDICTION OF ASSESSING OFFICER TO ISSUE NOTICE OF REOPENING OF A SSESSMENT BEYOND A PERIOD OF FOUR YEARS U/S.148 OF THE ACT, TWO CONDITIONS AR E REQUIRED TO BE SIMULTANEOUSLY SATISFIED; (I) THE ASSESSING OFFICER MUST HAVE REASON TO BELIEVE THAT INCOME, PROFIT AND GAIN CHARGEABLE TO TAX HAVE BEEN UNDER-ASSESSED AND (II) HE MUST ALSO HAVE REASON TO BELIEVE THAT SUCH UNDER ASSESSMENT HAS OCCURRED BY THE REASON OF EITHER OMISSION OR FAILUR E ON THE PART OF THE ITA NOS. 1776 & 2058/AHD/2012 A.Y. 05-06 (M/S.KRISH NA ART SILK CLOTH PVT.LTD.) PAGE 7 ASSESSEE TO MAKE A RETURN OF HIS INCOME OR OMISSION OR FAILURE ON THE PART OF ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS NECESSARY FOR THE ASSESSMENT FOR THAT YEAR. BOTH THE AFORESAID CONDI TIONS ARE THE CONDITIONS PRECEDENT TO BE SATISFIED BEFORE THE ASSESSING OFFI CER COULD HAVE JURISDICTION TO ISSUE NOTICE FOR REASSESSMENT BEYOND A PERIOD OF FOUR YEARS. THE REASON TO BELIEVE OF INCOME ESCAPING ASSESSMENT OF THE ASSESS ING OFFICER MUST BE BASED UPON SOME TANGIBLE MATERIAL I.E. IT CANNOT BE MERE IPSE DIXIT OF THE ASSESSING OFFICER. A DIFFERENT VIEW ON TANGIBLE MA TERIAL AVAILABLE EARLIER WOULD BE A CHANGE OF OPINION AND WOULD NOT AMOUNT TO REAS ONS TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. I N THE PRESENT CASE, IT IS AN UNDISPUTED FACT THAT ORIGINAL SCRUTINY ASSESSMEN T WAS DONE U/S.143(3) OF THE ACT FOR A.Y. 2005-06 ON 31.12.2007 AND THE PROP OSED RE-ASSESSMENT WAS SOUGHT TO BE TAKEN AFTER THE EXPIRY OF FOUR YEARS F ROM THE END OF THE RELEVANT ASSESSMENT YEAR. IN SUCH A SCENARIO, THE FIRST PRO VISO TO SECTION 147 OF THE ACT ARE ATTRACTED AND ACCORDING TO WHICH, NO ACTION FOR INITIATION OF RE- ASSESSMENT PROCEEDINGS FOR A.Y. 2005-06 COULD BE IN ITIATED UNLESS THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT BY REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY AL L MATERIAL FACTS. AT THIS MOMENT, IT WOULD BE RELEVANT TO REPRODUCE THE REASO NS THAT WERE RECORDED FOR REOPENING THE ASSESSMENT AND WHICH ARE PLACED BY TH E ASSESSEE ON RECORD AND WHICH READS AS UNDER: THE ASSESSMENT U/S 143(3) OF THE IT ACT, 1961 WAS COMPLETED BY THE THEN AO ON 31.12.2007 ASSESSING TOTAL INCOME AT RS.NIL A S COMPARED TO THE RETURNED INCOME OF RS.(-)21,29,920. ITA NOS. 1776 & 2058/AHD/2012 A.Y. 05-06 (M/S.KRISH NA ART SILK CLOTH PVT.LTD.) PAGE 8 THE PROVISIONS OF SECTION 145A OF THE ACT MANDATE I NCLUSIVE METHOD OF ACCOUNTING FOR THE PURPOSE OF THE ACT IN RESPECT OF DUTY, CESS AND TAXES |EVEN THOUGH THE ASSESSEE MIGHT BE FOLLOWING EXCLUSIVE ME THOD OF ACCOUNTING. ASSESSEE FOLLOWED MERCANTILE SYSTEM OF ACCOUNTING ( EXCLUSIVE METHOD). ON PERUSAL OF THE BREAK UP OF LOANS AND ADVANCES OF TH E BALANCE SHEET AND CLAUSE 22(A) OF REPORT IN FORM 3CD, IT WAS OBSERVED THAT THE ASSESSEE HAD UNUTILIZED CENVAT CREDIT OF RS.22,85,716 AT THE END OF THE P.Y. ENDING ON 31.3.05 WHICH WAS NOT CONSIDERED FOR ADJUSTMENT AS REQUIRED U/S.145A OF THE ACT AND INCLUDED ALONG WITH THE CLOSING STOCK. OMIS SION TO APPLY THE PROVISIONS OF SECTION 145A OF THE ACT RESULTED IN U NDERASSESSMENT OF RS.22,85,716. IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT THERE IS ESCAPEMENT OF INCOME OF MORE THAN RS.1 LAC IN THE HANDS OF ASSESS EE WHICH IS REQUIRED TO BE TAXED BY REOPENING THE ASSESSMENT U/S. 147 OF TH E INCOME-TAX ACT, 1961. THUS, IT IS A FIT CASE FOR ISSUING NOTICE U/S.148 O F INCOME-TAX ACT.' ON PERUSING THE REASONS, IT IS SEEN THAT THOUGH THE ASSESSING OFFICER HAS MENTIONED THAT INCOME HAD ESCAPED BUT THERE IS NO A LLEGATION OF THE FAILURE ON THE PART OF ASSESSEE TO FULLY AND TRULY DISCLOSE TH E MATERIAL FACTS FOR ASSESSMENT AND THE ASSESSING OFFICER HAS ALSO NOT I NDICATED AS TO WHICH MATERIAL FACT HAD NOT BEEN FULLY AND TRULY DISCLOSE D BY THE ASSESSEE. IN SUCH A SITUATION, WE ARE OF THE VIEW THAT MERELY HAVING A REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT WILL NOT BE SUFFICIEN T TO REOPEN ASSESSMENTS BEYOND THE PERIOD OF FOUR YEARS FROM THE END OF REL EVANT ASSESSMENT YEAR. FURTHER, IT IS A SETTLED PROPOSITION OF LAW THAT AS SESSMENT CANNOT BE REOPENED ON MERE CHANGE OF OPINION AND THE HONBLE SUPREME C OURT IN CASE OF CIT VS. KELVINATOR INDIA LTD. (2010) 320 ITR 561 (SC) HAS C ONFIRMED THE DECISION OF THE FULL BENCH OF THE DELHI HIGH COURT AND HELD THA T A MERE CHANGE OF OPINION CANNOT FORM THE BASIS FOR REOPENING THE ASSESSMENT. IN VIEW OF THE AFORESAID FACTS, WE ARE OF THE VIEW THAT THE JURISDICTIONAL R EQUIREMENT IMPOSED BY PROVISO TO SECTION 147 IN THE MATTER OF REOPENING OF ASSESS MENT HAS NOT BEEN FULFILLED AND THEREFORE WE ARE OF THE VIEW THAT THE ASSUMPTIO N OF JURISDICTION IS WITHOUT ITA NOS. 1776 & 2058/AHD/2012 A.Y. 05-06 (M/S.KRISH NA ART SILK CLOTH PVT.LTD.) PAGE 9 JURISDICTION AND THEREFORE THE ASSESSMENT ORDER CAN NOT BE SUSTAINED AND DESERVES TO BE QUASHED AND SET ASIDE AND THUS, THE GROUND OF ASSESSEE IS ALLOWED. SINCE THE ASSESSMENT ORDER ITSELF IS QUAS HED, THE GROUNDS RAISED BY THE REVENUE DOES NOT SURVIVE AND THEREFORE, THE GRO UNDS OF REVENUE ARE DISMISSED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED AND THAT OF REVENUE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 17 TH NOV. 2015 SD/- SD/- ( RAJPAL YADAV ) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- () *+ / APPELLANT ,) -.*+ / RESPONDENT /) 012 3 / CONCERNED CIT 4) 3- / CIT (A) 6) 7 89 -12 12' :0 / DR, ITAT, AHMEDABAD ;) 9<= >? / GUARD FILE. BY ORDER/ /: 12' :0